Bombing from the skies

Bombing from the skies

by: Hamza Imran Nisar

Those fighting the tyranny of others should always guard themselves from becoming tyrants, and those seeking to enforce legitimacy should themselves use legitimate means. Alas, the United States has seldom adopted such philosophy in its foreign policy.

On 4 February 2002, the Central Intelligence Agency (CIA) operated its first unmanned drone strike in a targeted killing. Three men were gathered in an area located in the Paktia Province in Afghanistan. The intended target was Osama bin Laden. However, those actually “targeted” were three innocent men.[1]

The US-led drone programme has since expanded considerably to countries like Yemen, Pakistan, Somalia and most recently Iraq under the Obama administration as a tool for counter-terrorism.[2], [3] Indeed, counter-terrorism measures in the War on Terror have become almost synonymous with abuses of human rights on a global scale. Extra-judicial killing, torture, and arbitrary and incommunicado detention without charge have all become pieces of a jigsaw puzzle. When pieced together, they produce a revealing and holistic picture of the War on Terror.[4] Thus, the world ought to be aware of the apparent inconsistent, or rather, disingenuous, policies of this war.

As part of this formula, drones are increasingly forming part of the arsenal of many States for deploying force across international borders and in domestic law enforcement contexts.[5] As the capacity to use such technology increases, such scenarios risk privileging force over peaceful negotiations, which is contrary to the foremost principles of international law on maintaining global peace and security, and the right to life.[6]

Conversely, there are a number of perceived benefits of drones to State users. They contribute to more accurate targeting and are capable of reducing causalities for the State using them. Such factors minimise the domestic political constraints, and are thus less restrictive than the deployment of other types of force that may result in greater casualties.[7]

This article briefly examines the legality of US drone strikes in target States through the twin lenses of International Humanitarian Law (IHL) and International Human Rights Law (IHRL). The issue of drone strikes has become significantly contentious. It has been characterised as the biggest threat to international peace and security, and the right to life.[8] The UN has established the prohibition against the arbitrary deprivation of life and protection of territorial integrity as sacred norms. [9]

This article demonstrates that the majority of US drone strikes violate the International Humanitarian principles of distinction and proportionality in armed conflict situations. It highlights the attempt to weaken the relevance of the prohibition of the arbitrary deprivation of life and due process in situations around (but not within) armed conflict. It contends that US state practice of targeted killing must be reformulated to restore parity with the tenants of proportionality and fairness.

Characterising Drone strikes

Targeted killing is the ‘intentional, premeditated and deliberate use of lethal force by States or their agents acting under the colour of law… against a specific individual who is not in the physical custody of the perpetrator.’[10] The use of drones by the US, operated under the CIA, has formed part of its counter-terrorism policy by targeting and killing members of potential non-state actors such as Al-Qaeda (AQ) and their affiliate groups in Pakistan, Somalia and Yemen. The drone programme has also seen an exponential increase during the Obama presidency. According to open sources, around 540 drone strikes have been conducted since 2004, killing approximately 4,829 individuals, of which 1,444 are civilians, including children. [11] Such staggering figures highlight the need for greater accountability and transparency.

The vast majority of attacks appear to be signature drone strikes,[12] namely those that target ‘groups of men who bear certain signatures or defining characteristics associated with terrorist activity, but whose identities are not known.’[13]

As there is a lack of consensus on how to apply the rules of international law to US’s extra-territorial use of drones against non-State armed groups, the underlying question therefore arises: when does the use of drones become justifiable in a manner consistent with international norms?

It is my intention to clarify the application of those rules to US drone signature strikes. Whether or not such attacks are legal depends upon the context and manner in which they are conducted: whether in non-international Armed Conflicts; outside of Armed Conflict situations, where International Human Rights Laws apply; or in relation to the Law on Interstate Use of Force. The former two legal regimes will be examined.

Humanitarian law and Armed Conflict

International Humanitarian Law (IHL) distinguishes between two types of armed conflict: International armed conflict and non-international armed conflict (NIAC). The former occurs between two or more opposing States, whilst NIACs take place between governmental forces and non-governmental armed groups.[14] As US drone strikes appear to occur in the latter type, the protection afforded to the right to life is thus interpreted in accordance with the rules of armed conflict. Its legal sources comprise of the Geneva Conventions of 1949, its two Additional Protocols, the 1907 Hague Regulations and the customary law principles of armed conflict.[15]

The tests for determining whether there is an NIAC may depend on whether the US and AQ, and their affiliate groups, meet the two-fold threshold requirements.[16] Firstly, there must be violence that amounts to ‘protracted armed violence’ and secondly, that it exists between governmental authorities and ‘organized armed groups.’[17] The latter criterion requires AQ to be identifiable so as to allow the US to comply with their obligation to distinguish between lawful targets and civilians.[18] If NIACs fail to meet such requirements, the stringent rules of International Human Rights Law (IHRL) apply.[19]

Despite the vast interpretation and commentary on these criteria, and assuming for the sake of succinctness that drone strikes are conducted within an NIAC, it naturally follows that the rules of IHL apply.

A. The principles of distinction and proportionality under IHL

Under IHL, the principle of distinction dictates that civilians may never be targeted, unless they directly participate in hostilities (DPH) or are participating at the time of attack.[20] When attackers are doubtful as to the status of an individual, civilian status must always be presumed.[21]

Additionally, the proportionality principle seeks to protect civilians who are not directly targeted to minimise collateral damage. Those that DPH are only targetable ‘for such time as they take a direct part in hostilities.’[22] It prohibits any attacks that may cause loss and injury to civilian life, and that which could be regarded as excessive ‘in relation to the concrete and direct military advantage anticipated.’[23] Moreover, there is a requirement on the state to take all precautions to minimise incidental loss of civilian life and to ensure robust informational-gathering in relation to the identification of their targets, before striking.[24]

The International Committee of the Red Cross (ICRC) declared in its Interpretative Guidance on Direct Participation in Hostilities, that those who are neither members of an organised armed group nor part of a State’s armed forces are protected from direct attack in NIAC situations.[25]

However, there are conceptual issues with the notion of DPH. Firstly, there lacks an authoritative basis in treaty law to describe what conduct constitutes ‘direct participation.’ Secondly, there is a lack of consensus as to the extent to which a ‘membership of an armed group’ can be a factor in determining whether one is considered to DPH. Thirdly, there is debate as to how long direct participation lasts.[26] For these reasons, there is no broadly accepted definition. This has left it open for interpretation, in particular for the US to delineate its borders.

Despite this, the ICRC in 2009 attempted to formulate a three-part test, albeit non-binding, for determining when a civilian can be considered as DPH.[27] However, such proposals have been ignored by the US, highlighting the need for a legally binding DPH test.

There is also a requirement for the targeting State ‘to do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects.’[28] Article 50 of AP I provides that attackers must make a presumption of innocence for when there is doubt as to the legitimacy of a target,[29] even after taking feasible precautions.[30] In such circumstances, a ‘call for additional information [… and] for further reconnaissance’ must be taken prior to a drone attack.[31]

B. Legality of US signature drone strikes under IHL

The US currently maintains that at least eleven distinct signature strikes are legally adequate and in accord with the principles of distinction and proportionality.[32] However, in order to examine the legality of US signature drone strikes under IHL, it necessitates an answering of two questions. Firstly, is the particular signature legally sufficient to establish that the victim of the strike was targetable? And secondly, was the evidence adequate enough to determine that the targeted individual was engaged in the signature behaviour?[33] Both questions need to be answered affirmatively in order for a signature strike to be legal.

I. SDS against males of military-age in areas of ‘known terrorist activity’

The US considers all ‘military age males in a strike zone as combatants’ and thus subject to drone attacks.[34] Such signature strikes have been widely criticised as they plainly contradict the principle of distinction and proportionality.[35] ‘Status-based targeting’ is only permissible when individuals qualify as members of an organised armed group.[36] Status cannot be deduced simply from the fact that an individual is of military age and happens to be at the wrong place at the wrong time. It ‘cannot depend on abstract affiliation, family ties, or other criteria prone to error, arbitrariness or abuse.’[37] Such an SDS plainly fails the legality test.

II. SDS against those ‘consorting with known militants’

It is reported that the US uses drones to target those ‘consorting with known militants.’[38] ‘Consorting with known militants’ does not qualify as DPH as it fails the three elements.[39] Firstly, they are ‘not likely to affect the military operations’ of the United States. Secondly, there is no ‘direct causal link’ between consorting and having a detrimental effect on US military operations. Thirdly, ‘consorting’ is not ‘specifically designed’ to have a detrimental effect.[40]

According to the UN Sub-Commission on Human, ‘as long as the so-called “masses” do not participate directly in combat, although they may sympathise, accompany, supply food and live in zones under the control of the insurgents, they preserve their civilian character, and therefore they must not be subjected to military attacks.’[41] Therefore, guilt by association and sympathising would not be sufficient to warrant a drone attack.

III. SDS against armed men travelling in AQ controlled areas.

The US has used drones against armed men travelling in trucks in areas ‘under […] the control’ of AQ in the Arabian Peninsula (AQAP).[42] This SDS is similar to the legally inadequate ‘military-age male in an area of terrorist activity’ signature, as simply being in an AQAP would not suffice to establish their directly participating in hostilities. Both States and international criminal tribunals reject the argument that being armed in a combat zone is sufficient to remove civilian status from individuals.[43] For example, in Simac the International Criminal Tribunal for the former Yugoslavia rejected the contention that ‘the possession of weapons in itself creates a reasonable doubt as to the civilian status’ of the individuals in question.[44]

IV. Suspicious camp in AQ-controlled area.

The US have also practiced the drone targeting of ‘suspicious compounds in areas controlled by militants.’[45] Article 52(3) of AP I states that ‘in case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used.’[46] In this regard, a compound is arguably a civilian object as ‘mere suspicion’ that it is being used for military purposes cannot suffice to establish that it is a military objective.[47]

Furthermore, in any case where suspicion is raised as to whether the camp or compounds is being used by fighters, the US must fulfil its requirement to do ‘everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects.’[48] Therefore in any case where there is only suspicion and not enough evidence as to whether a camp or compound is being used for military purposes, a signature for such purposes would be unlawful.

V. The evidentiary façade

Another problematic area concerns the US’s categorical refusal to ‘reveal the evidence on which specific signature strikes are based.’[49] As a result, it is impossible to describe current US practices and their internal procedures without uncertainty. However, according to a former drone operator for the military’s Join Special Operations Command (JSOC) the ‘agency often identifies targets based on controversial metadata analysis and cell-phone tracking technologies’ to which the ‘CIA […] then orders a strike based on the activity and location of the mobile phone a person is believed to be using.’[50]

Commentators have pointed out this to be an unreliable way of identifying and targeting witnesses, seeing that it is the cell phones they are targeting, and not the individual, which leads to the disproportionate killing of civilians.[51]

This presents major problems, as without knowing the evidentiary basis of an SDS, it is impossible to definitively conclude whether or not there has been a violation of the principle of distinction.

In light of the above, it is legally questionable whether the US is capable of accurately distinguishing between members of an organised armed group and civilians. This distinction is critical and it is highly unlikely that simple metadata analysis or other surveillance is capable of reliably distinguishing between these groups. It is more unlikely that the US even attempts to make such a distinction.[52]

This in itself violates both principles of distinction and proportionality as the US ‘fails in doing everything feasible to verify that the objectives are civilians.’[53] Clearly, the U.S. fails the requirement that strictly prohibits attacks that may cause loss and injury to civilian life. SDS are disproportionate and ‘excessive in relation to the direct military advantage anticipated’ under IHL.[54]

International Human Rights Law

A. The right to life and the prohibition against the arbitrary deprivation of life under IHRL

The right to life and the prohibition against the arbitrary deprivation of life are the most sacrosanct principles in international law, and are considered rules of jus cogens (peremptory norms).[55] Any deprivation of life must be non-arbitrary as is implied within the Universal Declaration of Human Rights, and explicitly in various other treaties.[56]

The legality of drone strikes outside the paradigm of armed conflict is governed by the Human Rights standard. Any deprivation of life must be both necessary and proportionate to protect against an imminent threat to life under the IHRL model.[57] Thus, drone strikes are only legal when it is to protect life – establishing necessity, and when there are ‘no other means, such as capture or incapacitation, of preventing that threat to life’ – establishing proportionality.[58]

This implies that a targeted drone strike under IHRL, in the sense of an intentional, premeditated and deliberate killing, would only be unlawful if the sole object of an operation is killing.[59]

According to IHRL, the attacking State must have an independent justification for each and every individual killed in the attack,[60] which the US government is patently unable to do. The killing of ‘anyone other than the target (family members or others in the vicinity, for example) would be an arbitrary deprivation of life under human rights law and could result in State responsibility and individual criminal liability’ for the US.[61]

The requirement of there being a necessity is even more difficult for the US to satisfy: at what point is a planned attack so imminent that the US could not pursue non-lethal means of preventing it.

B. Due Process and suspected terrorists under IHRL

A State’s method of ensuring proportionality may also be evaluated according to the principles of law enforcement.[62] Under this model, a state must not only respect the right to life, but also the presumption of innocence, the right to a fair trial and due process of law. In this light, a judicial procedure ‘respectful of due process and arriving at a final judgment’ is regarded as the sine qua non(an essential feature), without which a signature strike would be in violation of the right to life in circumstances outside the realm of Armed Conflict.[63]

An increasing number of scholars have argued that US due process principles should govern targeted killing of suspected terrorists and be applicable to drone strikes. This is firstly because the text of the Fifth Amendment bars the government from depriving any person of life without due process of law.[64] Secondly, because the Supreme Court decisions in Boumediene and Hamdi,[65] limits executive authority to detain persons as enemy combatants. By extension, Murphy argues that if due process controls ‘whom the executive may detain in the war on terror,’ then surely due process ‘controls whom and how the executive may kill.’

Under IHRL, the US drone programme would be largely unlawful, as it clearly fails to satisfy both principles of necessity and proportionality.

In the final analysis, this article has shown that the majority of US drone strikes appear to be unlawful under IHL. Those that are lawful require the US to provide evidence concerning the target prior to the attack, which the US is unlikely to possess. However, in circumstances where the US can provide evidence, there are serious questions as to whether it is sufficient to rebut the presumption of civilian status. There is also no consensus on the definition of ‘direct participation in hostilities’, which is an underlying factor for disproportionate killing of civilians. The notion that IHL governs all US signature strikes is also shown to be problematic. This is because not all terrorist groups ‘associated’ with AQ qualify as organised armed groups, and that the hostilities between them fail to reach a certain threshold of violence. In such cases, SDS is governed by IHRL.

This article has shown IHRL’s intolerance for collateral damage significantly limits the range of permissible SDS. The majority of US strikes appear to violate the norms that insist that individuals cannot be arbitrarily deprived of their right to life.

[20] Alston report 19. See Also: Additional Protocol II, Art 13 (2) and (3) and Protocol Additional to the Geneva Conventions 1949, and relating to the Production of Victims of International Armed Conflict (Protocol I), art. 51.

[24]Melzer, N, ‘Interpretive Guidance on the Notion of direct Participation in Hostilities under International Humanitarian Law (ICRC, Geneva 2009) 82.

[25] Ibid. 27.

[26] Alston report 19. See Also: Sassoli, M, ‘The Relationship between international Humanitarian Law and Human Rights Law where it Matters: Admissible Killing and Internment of Fighters in Non-International Armed Conflicts,’ (2009) 90 International Review 611.

[27] Melzer, ‘Keeping the balance between Military Necessity and Humanity: A Response to Four Critiques of the ICRC’s interpretive Guidance on the Notion of Direct Participation in Hostilities.’ 2010 42 NYU Journal of International law and politics 829, 858.

[28]AP 1, Article 57 (2).

[29] AP I article 50

[30] Ibid. See Also: Sassoli, M, ‘The Relationship between international Humanitarian Law and Human Rights Law where it Matters: Admissible Killing and Internment of Fighters in Non-International Armed Conflicts,’ (2009) 90 International Review 611.